No joke: New email ‘unsubscribe’ laws to be enforced from April 1

The federal government has stepped in and made amendments to existing laws relating to email communications, to take effect this week on April 1. It may be April Fool’s Day, but if you run a business, compliance and the proper management of your subscriber database, is no joke.

The federal government has updated the Spam Regulations 2021 (Cth) under the Spam Act 2003 (Cth), mandating that organisations sending commercial electronic messages must make it straightforward for customers to ‘unsubscribe’.

The aim of the amendments is to provide greater clarity and certainty for consumers, companies and regulatory compliance advisers alike.

The amendments are in response to mounting frustration from growing numbers of consumers who have taken exception to the processes many businesses put in place that were making unsubscribing more difficult, rather than less.

Submissions to the government’s review of the regulations highlighted the many complaints on this issue being received by regulators, including the Australian Communications and Media Authority (ACMA) and the Australian Competition and Consumer Commission (ACCC).

Many consumers appear to share the frustration of being unable to unsubscribe from receiving spam email unless they provided their personal information, logged in, or in some cases, created an account. 

The new regulations have now clarified and updated what’s required when it comes to ‘unsubscribe’ options.

It’s now unambiguous that companies cannot request email recipients provide personal information (other than the electronic address to which the commercial electronic message was sent), nor request the recipient log into or create an account with the entity who sent (or authorised) the commercial electronic message, in order to unsubscribe. 

New laws in effect from April 1

The regulations will come into effect as of April 1, which means that when someone receives a commercial electronic message and makes an ‘unsubscribe’ request (using the unsubscribe facility they’ve been directed to use in the message) they should not be required to:

• use a premium service;
• provide further personal information; 
• log into or create an account; or
• pay a fee or charge to the sender or a related person (with some exceptions).

There is some good news for devotees of retro technology such as fax services, with fax messages specifically excluded from the definition of ‘commercial electronic messages’ by the regulations.

This is partly because there’s other legislation that contains provisions prohibiting marketing faxes being sent to numbers registered on the Do Not Call Register; and we’d also assume it’s because barely anyone born after 1980 knows what a ‘fax machine’ is, much less how to operate one.

Unsubscribing is now … just that

This increased clarity in the regulations will no doubt be welcomed by the regulator, the ACMA, as it reflects the approach it has taken in a number of recent enforcement actions .

Earlier this year, the ACMA imposed roughly $300,000 in penalties on Kogan, after finding the company sent more than 42 million marketing emails to consumers from which they could not easily ‘unsubscribe’. Instead, Consumers were required to take additional steps, including setting a password and logging into a Kogan account.

Another cautionary tale relates to Woolworths, which was hit with over $1 million in infringement notices in 2020 by the regulator — an amount that accounts for just under half of all the fines imposed on businesses by the ACMA in the past two years.

Clearly, any business caught contravening the new regulations is at risk of similarly substantial penalties.

Are your email communications compliant?

Do you send out marketing or sales emails? If you do, it’s critical you have a simple, and functioning, ‘unsubscribe’ facility. 

Breaches of the Spam Act can see your business slugged with hefty penalties. 

With unsubscribe practices being subjected to greater scrutiny and increased regulation, this month is an excellent opportunity to review your business’ electronic mail processes and overall spam compliance.